COLLINS v. PETTITT. the lands of defaulting taxpayers from year to year in default of other bidders, accumulated large bundles of worthless "tax sale certificates." Fifty years or so ago when the average State tax was nine cents or less on $100, the temptation to any land owner to shirk payment of taxes was small and the default of those who did threw a hardly perceptible increase upon those who paid. But with the addition of the public schools, the Insane Asylum, Institutions for Deaf, Dumb and Blind, the Penitentiary and many other added subjects of expense required by an advancing civilization the aggregate of State and County taxes has run up often to the full limit of taxation (66 2-3c), with frequent recurrence of special taxes in excess of that sum. The increased temptation to avoid taxation, a temptation that was encouraged by a knowledge of the futility of tax sales piled an increasing burden upon good men and swelled the ranks of those who evaded the payment of their just public burdens. The complaint became general, the State Treasurer and the Governor repeatedly recommended a change as imperatively demanded, till finally the Legislature of 1885, Ch. 238, appointed a Commission of three eminent citizens to report a bill for an entirely new system of collecting taxes, the first and indispensable requisite being of course that the purchaser at a tax sale should get a good title. The Commission reported to the Legislature of 1887 their bill which was in most particulars a copy of the law on the subject obtaining in most other States, and whose constitutionality had been sustained by many decisions of their Courts and by the United States Supreme Court, and the change was suggested as valid if it should be made by the opinion of this Court in Fox v. Stafford, 90 N. C., 296, at p. 298 (1884). The report of the Tax Commission was adopted-Laws 1887, Ch. 137—and with minor changes is the law today. Its striking feature COLLINS v. PETTITT. was a change of the burden of proof. The old law placed upon the purchaser at a tax sale the burden of proving that all the proceedings were regular, which it was almost impossible for him to do. Under the new law the burden was shifted, and the tax deed was made conclusive evidence of the regularity of matters of routine and presumptive evidence of all other matters. Statutes substantially the same as the new statute had been sustained as above stated in numerous decisions in the States adopting the tax reform and by the United States Supreme Court, many of which are cited in Cooley on Taxation (2nd Ed.), 521, note 1, and since reiterated by the United States Supreme Court down as late as Castillo v. McComico, 168 U. S., 674, and King v. Mullens, 171 U. S., 404. It is needless, however, to discuss the new statute, which has been sustained by this Court in Basnight v. Smith, 112 N. C., 229; Stanly v. Baird, (FURCHES, J.), 118 N. C., 75; Peebles v. Taylor, (FAIRCLOTH C,. J.), 118 N. C., 165; Sanders v. Earp, (MONTGOMERY, J.), 118 N. C., 275; Moore v. Byrd, Ibid, 688; Powell v. Sikes (MONTGOMERY, J.), 119 N. C., 231; Lyman v. Hunter, 123 N. C., 508, and other cases. The radical difference between the two systems is noted by FURCHES, J., in Worth v. Simmons, 121 N. C., at p. 361, where he says that in 1887 in the matter of tax titles "the Legislature changed the rule of presumptions. And now it is about as hard to defeat a tax title, as it was before to establish one.” The present is a rehearing of this case decided by a per curiam, 123 N. C., 769, upon the authority of Wilcox v. Leach, 123 N. C., 74, and therefore in effect is a rehearing as to the grounds of the opinion in the latter case, which went off upon the point that the word "may" in Section. 90, Chapter 119, Laws 1895, giving to the County Commissioners the right to foreclose upon a tax certificate, must be COLLINS v. PETTITT. read "shall" or "must." The statute says when the County purchases, the Commissioners "may proceed by action to foreclose such certificates or liens," etc.,-making it plainly optional. The opinion held inadvertently I think (bottom p. 78) the County "must proceed to collect only by foreclosure." I find no warrant for this in the statute, and it is counter to other provisions in the Act and to the public policy of the present legislation on the subject. In view of the very plainly expressed policy in the statutes which have been almost identical since the first enacted Chapter 237, Laws 1887, and the repeated decisions of this Court upon it, this seems like looking back to the "pit from which we have been digged." Not only the word "may" shows that foreclosure was an optional procedure, but the other provisions of the statute confirm that view. 1. The County is authorized to "purchase" just as any one else. Section 85. It is held that even independent of any expressed provisions of the statute, the Government has the same right to purchase as any one else and, if so, of course it would get exactly the same rights as any other purchaser. De Treville v. Smalls, 98 U. S., 517; Cooley v. O'Connor, 12 Wallace, 391; Douthett v. Kettle, 104 Ill., 356. In the the first of these cases, Mr. Justice Strong speaking of the effect of a purchase by the Government at a tax sale says (p. 522): "If the United States became the purchaser at the Commissioner's sale it was only to obtain the taxes by a resale, and such a resale, resting as it must have done upon the original sale made by the Commissioners, needed the encouragement and support of a Commissioner's certificate equally with a purchase by a bidder. It is not therefore to be admitted that the statute intended to put the United States in any worse condition than that occupied by any other successful bidder," and adds that the argument to the contrary "is plausi COLLINS v. PETTITT.. ble but unsound." Nor is there the slightest indication in our statute that it was intended to put the County, if it became a purchaser, upon a footing inferior to that "occupied by any other successful bidder." In the same case Mr. Justice Strong further says: "We are not unmindful of the numerous decisions of State Courts which have construed away the plain meaning of statutes providing for the collection of taxes, disregarding the spirit and often the letter of the enactments, until of late years the astuteness of judicial refinement had rendered almost inoperative all legislative provisions for the sale of land for taxes. The consequence was that bidders at tax sales, if obtained at all, were mere speculators. The chances were greatly against their obtaining a title. The least error in the conduct of the sale or in the proceedings preliminary thereto was held to vitiate it, though the tax was clearly due and unpaid." It was to remedy that state of things brought about, as Mr. Justice Strong says, by judicial legislation, with the resultant harship to all honest taxpayers, that the reformed tax system was adopted in this and other States as a sheer necessity for the public treasury, and already astute counsel are besieging the Court to construe away the new statute. 2. Section 85 (Chapter 119, Laws 1895), not only gives the County the same right to purchase as any one else, but authorizes it to receive and assign certificates of purchase. It must be that its assignee stands in the same plight as the assignee from any other purchaser, for the certificate issued to the County is identical with that issued to any other purchaser, and its wording is prescribed in Section 57 and provides, after the recital of sale and purchase, the following, "And I further certify that unless redemption is made of said estate in the manner provided by law, the said (here insert name of purchaser) heirs or assigns will be entitled to a deed COLLINS v. PETTITT. day of therefor on and after the A. D., 18-, on surrender of this certificate." When the plaintiff saw in Section 85 that the County could buy, receive a certificate and assign it like any one else, and that the certificate (whose form is prescribed in the statute) provides that on failure of the tax defaulter to redeem in the time prescribed by law, he would be "entitled to a deed" he was justified in relying upon the statute which did not put the County, when purchasing "in any worse condition than that occupied by any other successful bidder," to use the language of the highest Court in the land. Though Section 90 does give the County the option to foreclose, by Section 93 exactly the same privilege is given any other purchaser. Thus throughout the Act there is not the shadow of a shade of an intimation by the law making power of any discrimination or intention to discriminate between the County and any other purchaser. Both are authorized to purchase and to receive and assign the tax certificate; both receive the same tax certificate drawn in a form prescribed by statute and which on its face promises that the purchaser or his assignee shall be entitled to a deed, if the tax defaulter does not redeem within a year; and to the County and to the other purchaser alike is given the option to foreclose if it is preferred to taking a deed. There is no indication in the statute of any legislative intention to place one who buys the tax certificate of one who purchased at the sale a speculator in a better condition than one who buys the certificate from the County who purchases at the tax sale from necessity to save its taxes. A speculator's certificate ought not to be preferred to that of a County, thus making the latter unsalable, for who will buy a law suit? The evident purpose of conferring the privilege of foreclosure is that if there are tax certificates of prior date outstanding, it might be desirable, by a foreclosure, a proceeding in rem, to give |